TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 1050
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....-5-2011. He relied upon the decision of Tribunal in case of & ST Vs. Bobst India Pvt Ltd[2016(44) S.T.R. 316(Tri. Mumbai)] and in case of Microsoft Corporation (I) (P) Ltd. He further pointed out that Circular of CBEC dated 24-2-2009 is clearly in their favour and therefore they had bonafide belief that the said services are export of service therefore extended period of limitation cannot be invoked against them. For this contention he relied upon decision in case of National Engineering Industries Ltd Vs. CCE, Jaipur[2011(24) S.T.R. 683(Tri. Del.)] and Pam Pharma & Allied Machinery Co. P. Ltd Vs. CST, Mumbai[2015(37 S.T.R. 958(Tri. Mumbai)]. 3. Ld. A.R. relies on the impugned order. He took us through various observations made in the order. The Ld. A.R. relied on order in case of Life Care Medical Systems Versus Commissioner Of Service Tax, Mumbai-II[2013 (29) S.T.R. 129 (Tri.-Mumbai)] and Microsoft Corporation (India) Pvt. Ltd Versus Commr. of Service Tax.[2009 (16) S.T.R. 545 (Del.)]. 4. We have gone through rivals' submissions. 5. The important provision of agreement with YMTCJ and YMSPL have been reproduced in Order-in-Original as follows:- "(iv) The salient points of ....
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....rations of which are given below, are denied the benefit of export of services and the refund of service tax under rule 5 of the Cenvat Credit Rules, 2004 [Notification No.5/2006-C.E. (N.T.), dated 14-3-2006] on the ground that these activities do not satisfy the condition 'used outside India',- (i) Call centres engaged by foreign companies who attend to calls from customers or prospective customers from all around the world including from India; (ii) Medical transcription where the case history of a patient as dictated by the doctor abroad is typed out in India and forwarded back to him; (iii) Indian agents who undertake marketing in India of goods of a foreign seller. In this case, the agent undertakes all activities within India and receives commission for his services from foreign seller in convertible foreign exchange; (iv) Foreign financial institution desiring transfer of remittances to India, engaging an Indian organisation to dispatch such remittances to the receiver in India. For this, the foreign financial institution pays commission to the Indian organisation in foreign exchange for the entire activity being undertaken in India. The departmental officers ....
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....the owner of such property having his business and residence in India, it would have to be presumed that service has been used outside India. Similarly, if an Indian event manager (a Category II service [Rule 3(1)(ii)]) arranges a seminar for an Indian company in U.K. the service has to be treated to have been used outside India because the place of performance is U.K. even though the benefit of such a seminar may flow back to the employees serving the company in India. For the services that fall under Category III [Rule 3(1)(iii)], the relevant factor is the location of the service receiver and not the place of performance. In this context, the phrase 'used outside India' is to be interpreted to mean that the benefit of the service should accrue outside India. Thus, for Category III services [Rule 3(1)(iii)], it is possible that export of service may take place even when all the relevant activities take place in India so long as the benefits of these services accrue outside India. In all the illustrations mentioned in the opening paragraph, what is accruing outside India is the benefit in terms of promotion of business of a foreign company. Similar would be the treatment f....
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....wever should not apply to services which are merely performed from India and where the accrual of benefit and their use outside India are not in conflict with each other. The relation between the parties may also be relevant in certain circumstances, for example in case of passive holding/subsidiary companies or associated enterprises. In order to establish that the services have not been used outside India the facts available should inter alia, clearly indicate that only the payment has been received from abroad and the service has been used in India. It has already been clarified that in case of call centers and similar businesses which serve the customers located outside India for their clients who are also located outside India, the service is used outside India. It is seen that the impugned order relies on the circular dated 13-5-2011 to interpret phrase "use outside India" to ascertain if the said services qualifies as export service. The circular dated 24-2-2009 simply prescribed that the said service qualifies as exports if recipient is located outside India. In this circumstances appellant's claimed that they had bonafide belief on the strength of these circular dated....
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....er. The service being provided may or may not result in any sales of the product in Indian soil. The transactions and activities between the appellant and Singapore principal company are the disputed activities. As such, the services are being provided by the appellant to Singapore Recipient company and to be used by them at Singapore, may be for the purpose of the sale of their product in India, have to be held as export of services. 52. Apart from the above, we note that there was identical issue was before the Bench of the Tribunal in the case of Gap International Sourcing (India) Pvt. Ltd. [2014-TIOL-465-CESTAT-Del]. Vide its detailed order and after considering the various decisions of the higher Court as also various circulars issued by the Board, it stand held that services of identifying the Indian customers, for procurement of various goods on behest of foreign entity is the service provided by a foreign entity and such service provided by a person in India is consumed and used by a person abroad. It has to be treated as export of services. I also take note of the Tribunal's decision in the case of Vodafone Essar Cellular Ltd. v. CCE, Pune [2013-TIOL-566-CESTAT-Mum = ....